More telling is the second reason the feds have failed to charge an obviously applicable federal hate-crimes law against Bowers. Section 249 mandates that, before a prosecution may be brought under it, the attorney general must certify that (a) the state does not have jurisdiction; (b) the state has asked the federal authorities to take over the case; (c) a prior state prosecution — because of a not-guilty verdict or a light sentence — has “left demonstrably unvindicated the Federal interest in eradicating bias-motivated violence”; or (d) a federal prosecution is necessary to secure substantial justice.
There is no way Sessions could make this certification. Pennsylvania has jurisdiction, it has filed charges, it is highly likely Bowers will be convicted and sentenced to life imprisonment, and his convictions will surely include the afore-described state-law hate-crimes offenses.
That is, if the feds had sought to bring a Section 249 case, the attorney general’s inability to make the required certification would powerfully illustrate that there is no need for a federal prosecution.